finding that there was sufficient evidence that the defendant intentionally harbored illegal noncitizens because the defendant placed the noncitizens in a home (rent-free) that minimized their exposure to the general public, paid part of their wages in cash, and did not report those wages to the state
How later courts described this case
- finding that there was sufficient evidence that the defendant intentionally harbored illegal noncitizens because the defendant placed the noncitizens in a home (rent-free) that minimized their exposure to the general public, paid part of their wages in cash, and did not report those wages to the state
- finding evidence sufficient to support 18 U.S.C. § 1957 conviction where it showed defendant purchased a home using fraudulently obtained funds
- “[W]hen the basis for the defendant’s conviction under [the anti- harboring statute] is providing housing to a known illegal alien, there must be evidence from which a jury could conclude, beyond a reasonable doubt, that the defendant intended to safeguard that alien from the authorities.”
- requiring intent “when the basis for the defendant’s conviction under § 1324(a)(1)(A)(iii) is providing housing” to an illegal noncitizen
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2449
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MICHAEL B. MCCLELLAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12‐cr‐00153‐PPS‐PRC‐1 — Philip P. Simon, Chief Judge.
____________________
ARGUED FEBRUARY 13, 2015 — DECIDED JULY 21, 2015
____________________
Before WOOD, Chief Judge, and BAUER and RIPPLE, Circuit
Judges.
RIPPLE, Circuit Judge. After a jury trial, Michael McClellan
was found guilty of one count of harboring an illegal alien,
in violation of 8 U.S.C. § 1324(a)(1)(A)(iii); three counts of
mail fraud, in violation of 18 U.S.C. § 1341; and one count of
engaging in a monetary transaction involving criminally de‐
rived property, in violation of 18 U.S.C. § 1957. Because we
believe that the evidence presented to the jury was a suffi‐
2 No. 14‐2449
cient basis on which to rest its verdicts, and because we be‐
lieve that the jury instructions on the harboring count did
not constitute plain error, we affirm the judgment of the dis‐
trict court.
I
BACKGROUND
A.
Mr. McClellan and his wife, Tina, operated T & M Day‐
care (“T & M”) in Calumet City, Illinois. Nearly all of the
families at T & M participated in an Illinois state child‐care
initiative, which reimbursed daycare centers for care provid‐
ed to children of eligible families. In order to qualify, the
child’s parent or guardian had to reside in Illinois, be em‐
ployed or attend school, and have an income below a speci‐
fied amount.
Fransis Lopez was hired at T & M in February 2006. At
first she had limited contact with Mr. McClellan and Tina.
Later, the McClellans promoted Lopez to director; to do so,
they had to falsify records to make it appear that she met
qualifications dictated by state regulations. Once she became
director, she had frequent contact with Mr. McClellan and
Tina, both in person and over the phone.
Mr. McClellan and Tina instructed Lopez that, when new
families came to the daycare for services, Lopez should falsi‐
fy applications so that T & M could receive reimbursements
from the State. There were also times when the McClellans
told Lopez to leave the applications blank so that they could
write in the necessary information to obtain reimbursement.
No. 14‐2449 3
Many of the children who attended T & M also qualified
for meals through a state “Healthy Start” program.1 T & M
received reimbursement from the State of Illinois when a
qualifying child was provided a meal. Sabrina Sanchez, a
former director of T & M, testified that she would record ac‐
curately the children in attendance who had eaten meals.
She witnessed Mr. McClellan change those numbers on the
sheets, which he then submitted to the State for reimburse‐
ment. She also noticed that the Healthy Start records con‐
tained names of children who did not attend the daycare.
When she raised the issue with the McClellans, she was told
that the children were on the list because “they may come
[to the daycare].”2 After Lopez took over as director, she
would record that children had eaten a meal, when in fact
they had not; she did so at the McClellans’ instruction.
Testimony from several mothers established that their
application forms for T & M had been altered to contain false
information, that T & M had sought reimbursement from the
State beyond the time their children attended T & M, or that
T & M had sought reimbursement from the State when, in
fact, their children never actually had enrolled in the day‐
care.
B.
In 2008, Mr. McClellan purchased The Paragon restau‐
rant in Schererville, Indiana. Unbeknownst to Mr. McClel‐
1 R.87 at 149.
2 Id. at 243.
4 No. 14‐2449
lan, the Department of Homeland Security (“DHS”) had
been investigating The Paragon and its former owners, Louis
and Chris Gerodemos, based on information that illegal al‐
iens were working there and living in a house across the
street on St. John Road. As part of its investigation, the DHS
arrested The Paragon manager Horacio Bastida. Bastida
agreed to provide assistance to the Government by record‐
ing conversations with Mr. McClellan and also by providing
the DHS with documentary evidence that Mr. McClellan
was paying part of his employees’ wages in cash and was
not reporting those wages to the State of Indiana.
In 2008, Mr. McClellan and Tina also signed a purchase
agreement for the St. John Road house. When the closing
took place, the bulk of the purchase amount was wired from
T & M’s account. Several members of The Paragon’s undoc‐
umented kitchen staff lived in the house rent‐free.
Mr. McClellan paid the utilities for the house and also pro‐
vided food to these employees.
On July 2, 2009, Bastida recorded a conversation with
Mr. McClellan in which he raised the issue of the illegal sta‐
tus of “the guys in the back” of the restaurant.3 During the
conversation, Mr. McClellan stated that he had not been
aware of Bastida’s illegal status, but he did “kn[o]w about
the other guys.”4
A subsequent recording on August 12, 2009, captured a
meeting between Mr. McClellan and his kitchen staff.
Mr. McClellan believed that the employees in the back of the
3 Gov’t’s Ex. 32, Clip A at 2.
4 Id. at 8.
No. 14‐2449 5
restaurant should be doing a better job because they were
receiving free rent, utilities, and food.5 A conversation be‐
tween Mr. McClellan and Bastida that same day revealed
that Mr. McClellan was told that “the guys in back” had
“fake” social security numbers, that Mr. McClellan told Bas‐
tida that it was “fine” for those employees to use their fake
numbers, and that Mr. McClellan did not want “the guys in
the back to punch in no longer” using the electronic system
because “a record is produced” and he did not want a paper
trail.6
On March 24, 2010, law enforcement agents executed a
search warrant at The Paragon, the McClellans’ residence,
and the house on St. John Road. There were eight employees
in the restaurant that were working without legal status;
four other individuals without legal status were found in the
St. John Road house.
C.
A grand jury returned a five‐count indictment against
Mr. McClellan: Count 1 charged Mr. McClellan with harbor‐
ing five illegal aliens, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(iii), based on his employment of those aliens
and his providing them with housing at the St. John Road
house; Counts 2 through 4 charged Mr. McClellan with mail
fraud, in violation of 18 U.S.C. § 1341, based on his submis‐
5 See id., Clip B1 at 6 (“I’m giving free food, I’m giving a house to stay,
I’m paying light/gas bill … .”).
6 Id., Clip B2 at 3–4.
6 No. 14‐2449
sion of fraudulent quarterly employment tax reports from
October 2009, January 2010, and April 2010; and Count 5
charged Mr. McClellan and Tina with engaging in a mone‐
tary transaction involving criminally derived property, in
violation of 18 U.S.C. § 1957, based on the transfer of funds
from the T & M account for the purchase of the St. John Road
house.
The case was tried before a jury, which was given the fol‐
lowing instruction with respect to the elements of Count 1:
Count 1 of the indictment charges the
Defendant Michael McClellan with harboring
an alien. In order for you to find the Defendant
guilty of this charge, the Government must
prove each of the following elements beyond a
reasonable doubt:
1. The Defendant harbored the persons
named in the indictment.
2. The persons named in the indictment
were aliens.
3. The persons named in the indictment
remained in the United States in violation of
the law.
4. The Defendant knew that the persons
named in the indictment were not lawfully in
the United States.[7]
Mr. McClellan did not interpose any objection to this instruc‐
tion. The jury returned a guilty verdict on all five counts,
7 R.90 at 89.
No. 14‐2449 7
and the court subsequently sentenced Mr. McClellan to a
term of fifty‐one months on each of the five counts, to be
served concurrently. Mr. McClellan timely appealed.8
II
DISCUSSION
On appeal, Mr. McClellan contends that there was insuf‐
ficient evidence to convict him on any of the counts of the
indictment and that the district court instructed the jury im‐
properly with respect to Count 1. We turn first to the ques‐
tion of the sufficiency of the evidence.
A.
Mr. McClellan first submits that the evidence was insuf‐
ficient to convict him of any of the counts of the indictment.
When a defendant challenges the sufficiency of the evidence,
we will reverse only where, viewing the evidence in the light
most favorable to the verdict, the record demonstrates that
no reasonable jury could have found all the elements of the
crime charged beyond a reasonable doubt. See, e.g., United
States v. Vaughn, 585 F.3d 1024, 1028 (7th Cir. 2009).
8 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We
have jurisdiction over Mr. McClellan’s appeal pursuant to 28 U.S.C. §
1291.
8 No. 14‐2449
1.
With respect to Count 1 of the indictment for harboring
under § 1324(a)(1)(A)(iii), Mr. McClellan first submits that
“the government did not prove that [he] knew that any one
of the listed and alleged illegal aliens in Count One were, in
fact, illegal aliens or, with respect to the property at 1747 St.
John St., a resident there.”9 The record establishes, however,
that Francisco Jacobo‐Ortiz, one of the aliens whom Mr.
McClellan was accused of harboring in Count 1, worked in
the kitchen at The Paragon for three years.10 Moreover, in the
recorded conversations between Mr. McClellan and Bastida,
Mr. McClellan acknowledged on several occasions that he
knew that the employees “in the back” of the restaurant, i.e.,
the kitchen area as opposed to the dining room, were ille‐
gal.11 Indeed, in one recorded conversation with Bastida,
Mr. McClellan stated that he had been unaware of Bastida’s
lack of documentation, but he “knew about the other
guys.”12 Finally, Bastida testified that Jacobo‐Ortiz was one
of the employees present at the meeting with Mr. McClellan
in which Mr. McClellan voiced frustration with the employ‐
ees in the back of the restaurant because, he believed, they
should be working harder in light of the fact that they were
receiving free rent, utilities, and food.13 From this evidence,
9 Appellant’s Br. 17.
10 R.89 at 48.
11 Gov’t’s Ex. 32, Clip A at 2, 8.
12 Id. at 8.
13 See id., Clip B1 at 6 (“I’m giving free food, I’m giving a house to stay,
I’m paying light/gas bill … .”).
No. 14‐2449 9
therefore, a reasonable jury could conclude beyond a rea‐
sonable doubt that Mr. McClellan both knew of the illegal
status of Jacobo‐Ortiz and knew that he was living at the St.
John Road house rent‐free.
Mr. McClellan also argues that our recent decision in
United States v. Costello, 666 F.3d 1040 (7th Cir. 2012), clari‐
fied “that the keystone of harboring is concealing the alien
from detection by Government authorities.”14 He maintains
that Costello “reject[ed] the premise that ‘harboring’ can be
equated to ‘simple sheltering in the sense of just providing a
place to stay.’”15 He submits that, because he did not take
“any actions for the purpose of shielding the illegal aliens
from law enforcement detection,”16 his conviction under
§ 1324 cannot stand.
In Costello, the defendant was romantically involved with
a man whom she knew to be an illegal alien, and, at some
point in their relationship, he moved in with the defendant.
The Government posited that the defendant had “harbored”
the alien simply because she had provided him housing. We,
however, rejected the idea that harboring included “letting
your boyfriend live with you.” Costello, 666 F.3d at 1043. In
striving to define harboring, we observed that “‘harboring,’
as the word is actually used has a connotation … of deliber‐
ately safeguarding members of a specified group from the
authorities, whether through concealment, movement to a
safe location, or physical protection.” Id. at 1044. We also
14 Appellant’s Br. 16.
15 Id. (quoting United States v. Costello, 666 F.3d 1040, 1050 (7th Cir. 2012)).
16 Id. at 17.
10 No. 14‐2449
noted that “[t]he prohibition of concealing, shielding from
detection, and harboring … grew out of the prohibition of
smuggling aliens into the United States.” Id. at 1045. Harbor‐
ing, we continued, should be seen as “plug[ging] a possible
loophole left open by merely forbidding concealing and
shielding from detection.” Id. We gave the following exam‐
ple:
Suppose the owner of a Chinese restaurant in
New York’s or San Francisco’s Chinatown em‐
ploys known illegal aliens as cooks, waiters,
and busboys because they are cheap labor, and
provides them with housing in order to make
the employment, poorly paid though it is,
more attractive, and also because they lack
documentation that other landlords would re‐
quire of would‐be renters. The owner is har‐
boring these illegal aliens in the sense of taking
strong measures to keep them here. Yet there
may be no effort at concealment or shielding
from detection, simply because the immigra‐
tion authorities, having very limited investiga‐
tive resources, may have no interest in rooting
out illegal aliens in Chinese restaurants in Chi‐
natowns. It is nonetheless harboring in an ap‐
propriate sense because the illegal status of the
alien is inseparable from the decision to pro‐
vide housing—it is a decision to provide a ref‐
uge for an illegal alien because he’s an illegal al‐
ien.
Id. (emphasis in original). In short, we explained that, by
housing his illegal employees, “[t]he restaurant owner in our
No. 14‐2449 11
example provides an inducement to illegal aliens.” Id. at
1046. We then concluded that a defendant is guilty of har‐
boring for purposes of § 1324 by “providing … a known ille‐
gal alien a secure haven, a refuge, a place to stay in which
the authorities are unlikely to be seeking him.” Id. at 1050.
Here, unlike the defendant in Costello, Mr. McClellan and
his employees were not “cohabiting,” nor was he simply
providing aliens with a place to stay. Instead, Mr. McClel‐
lan’s situation mirrors that of the restaurant scenario in Cos‐
tello. The recorded conversations reveal that Mr. McClellan
knew that “the guys in the back” did not have legal status,
that he instructed them not to punch in in the same manner
as other employees, and that he provided them with housing
to help compensate them for the otherwise low wages that
he was paying them.17 Therefore, as in Costello, he was “har‐
boring these illegal aliens in the sense of taking strong
measures to keep them here.” Id. at 1045.
According to Mr. McClellan, however, Costello does not
merely require a showing that the defendant’s actions had
the effect of shielding the aliens from detection; instead, he
contends that “Costello established that the individual’s alien
status must be the driving purpose for the provision of shel‐
ter such that there also exists the intent by the defendant to
help the alien avoid detection by the authorities.”18
Mr. McClellan’s argument mirrors the argument raised
by the defendant in another recent § 1324 case, United States
v. Campbell, 770 F.3d 556 (7th Cir. 2014), cert. denied, 135 S. Ct.
17 See supra at 4–5.
18 Reply Br. 4.
12 No. 14‐2449
1724 (2015). In Campbell, the defendant had recruited young
women, who had overstayed their visas, into his “Family” of
prostitutes and provided them with housing. Id. at 561. Fol‐
lowing his § 1324 convictions, he appealed and argued that
Costello established a requirement that “the individual’s al‐
ien status must be the driving purpose for the provision of
shelter such that there also exists the intent by the defendant
to help the alien avoid detection by the authorities.” Id. at
569 (internal quotation marks omitted). Campbell main‐
tained that the district court had erred therefore by “failing
to instruct the jury regarding this intent element.” Id. at 570.
On plain error review, we affirmed Campbell’s convic‐
tion. We determined that we did not have to resolve the is‐
sue of intent because
[e]ven if Campbell [were] correct that the Gov‐
ernment must establish that he provided [the
young women] shelter for the purpose of evad‐
ing detection by law enforcement or immigra‐
tion authorities, … any instructional error in
this regard did not affect Campbell’s substan‐
tial rights. Although preventing detection by
law enforcement was not Campbell’s sole pur‐
pose for providing [the young women] with
housing and employment, and for concealing
their identities and whereabouts, the evidence
amply showed such prevention was an integral
part of Campbell’s overall “Family” plan.
Id. (footnote omitted).
Although the facts here are not as egregious as those in
Campbell, here, as in Campbell, there is evidence that provid‐
No. 14‐2449 13
ing the illegal workers with housing and utilities enabled the
workers to avoid detection by authorities and enabled
Mr. McClellan to continue to employ them at low wages,
keep up his profit margins, and lessen his employment tax
burdens. This connection, as we pointed out in Costello, is the
key to distinguishing § 1324 harboring from simply provid‐
ing housing to a known alien: harboring “con‐
not[es] … deliberately safeguarding members of a specified
group from the authorities, whether through concealment,
movement to a safe location, or physical protection.” 666
F.3d at 1044; cf. United States v. Vargas‐Cordon, 733 F.3d 366,
382 (2d Cir. 2013) (stating that harboring under § 1324 re‐
quires an “inten[tion] to help prevent the detection of the al‐
ien by the authorities”). Therefore, if our statement in Costel‐
lo were not sufficiently clear, we hold that, when the basis
for the defendant’s conviction under § 1324(a)(1)(A)(iii) is
providing housing to a known illegal alien, there must be
evidence from which a jury could conclude, beyond a rea‐
sonable doubt, that the defendant intended to safeguard that
alien from the authorities. Such intent can be established by
showing that the defendant has taken actions to conceal an
alien by moving the alien to a hidden location or providing
physical protection to the alien. See Costello, 666 F.3d at
1044.19
19 Mr. McClellan also argues that his case is distinguishable from Costello
and United States v. Campbell, 770 F.3d 556 (7th Cir. 2014), cert. denied, 135
S. Ct. 1724 (2015), because, in addition to discovering illegal aliens em‐
ployed at The Paragon in the St. John Road house, authorities also dis‐
covered other residents, some of whom were in the country illegally, and
others who had legal status. See R.89 at 209–10. The fact that Mr. McClel‐
lan was not harboring other aliens, however, does not diminish the evi‐
(continued…)
14 No. 14‐2449
Here, the record supports the jury’s conclusion that
Mr. McClellan intended to safeguard his employees from the
authorities. Like the defendant in Campbell, keeping his em‐
ployees’ legal status “off the radar” was important to the
profitable running of his business, The Paragon. Indeed, the
contract for the sale of the St. John Road house was negotiat‐
ed during the same time period as the purchase of The Para‐
gon.20 The location of the home minimized the illegal em‐
ployees’ exposure to the general public, and the free rent
and utilities both made their lower wages more attractive
and prevented them from engaging in other commercial
transactions, which may have exposed their illegal status.
There was deliberate action on Mr. McClellan’s part that
made detection of the employees living at the St. John Road
house more difficult. Consequently, the elements of harbor‐
ing under § 1324(a)(1)(A)(iii) are satisfied.
2.
Mr. McClellan next argues that there was insufficient ev‐
idence to convict him of mail fraud under 18 U.S.C. § 1341
(Counts 2 through 4) because the Government did not estab‐
lish that, in submitting the false quarterly employment tax
(…continued)
dence that, with respect to illegal aliens employed at The Paragon, the
provision of housing and utilities close to the workplace significantly
diminished the likelihood that they would be discovered and concomi‐
tantly benefitted Mr. McClellan’s business endeavors.
20 See Gov’t’s Ex. 37.
No. 14‐2449 15
statements, he intended to defraud the State of Indiana.21 “A
mail fraud conviction requires three elements: (1) a scheme
or artifice to defraud, (2) the use of the mailing system for
the purpose of executing the scheme, and (3) the defendant’s
participation in the scheme with the intent to defraud.” Unit‐
ed States v. Giovenco, 773 F.3d 866, 869 (7th Cir. 2014). Intent
to defraud is evidenced by “a ‘willful act … with the specific
intent to deceive or cheat, usually for the purpose of getting
financial gain for one’s self or causing financial loss to an‐
other.’” United States v. Leahy, 464 F.3d 773, 786 (7th Cir.
2006) (quoting United States v. Britton, 289 F.3d 976, 981 (7th
Cir. 2002)). Intent to defraud “may be established by circum‐
stantial evidence.” United States v. Stephens, 421 F.3d 503, 509
(7th Cir. 2005) (internal quotation marks omitted).
Mr. McClellan argues that, because the practice of paying
illegal workers in cash was established by the former owners
of The Paragon, he was merely an unwitting participant in
any illegality: “The only connection between [Mr. McClel‐
lan’s] alleged actions and any loss [to the State] was that he
21 18 U.S.C. § 1341 provides:
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, …
for the purpose of executing such scheme or artifice or
attempting so to do, places in any post office or author‐
ized depository for mail matter, any matter or thing
whatever to be sent or delivered by the Postal Service, or
deposits or causes to be deposited any matter or thing
whatever to be sent or delivered by any private or com‐
mercial interstate carrier, … shall be fined under this ti‐
tle or imprisoned not more than 20 years, or both … .
16 No. 14‐2449
trusted dishonest individuals to operate his business. The
record does not establish a fraudulent scheme to defraud
anyone of anything.”22 This is not the case. Bastida testified
that, at Mr. McClellan’s direction, he would pay the “back of
the house” employees in “cash, and some others half and
half, half check and half cash.”23 Mr. McClellan also instruct‐
ed him to set aside cash tickets and to bring them into
Mr. McClellan’s office at night.24 The cash from those tickets
would be used to pay the employees. Far from being duped
by dishonest prior owners, therefore, Mr. McClellan had full
knowledge of how his employees were being paid and that
their wages, or at least part of them, were not being reported
for tax purposes.
In his reply, Mr. McClellan maintains that he installed a
new computer system that kept track of cash withdrawals
from the register, and, therefore, there is no evidence of
fraudulent intent to hide those transactions from the State.25
Bastida testified, however, that the cash transactions were
not recorded in the same method as other transactions, but
were recorded in “Mike’s training mode.”26 The fact that
cash transactions were being tracked differently than other
transactions indicates that Mr. McClellan wanted to know
how much cash was coming out of the register, but does not
22 Appellant’s Br. 20.
23 R.89 at 28.
24 See id. at 33–34.
25 It is not clear from the referenced testimony when during Mr. McClel‐
lan’s ownership this occurred.
26 Id. at 203.
No. 14‐2449 17
suggest he intended to be forthcoming with the State as to
those transactions. Indeed, nothing in the record indicates
that he was using those records to ensure that he was
providing accurate information to the State or calculating
accurate withholdings for tax purposes.27
3.
Lastly, Mr. McClellan challenges his conviction for mon‐
ey laundering under 18 U.S.C. § 1957. Section 1957 of Title 18
provides that “[w]hoever … knowingly engages or attempts
to engage in a monetary transaction in criminally derived
property of a value greater than $10,000 and is derived from
specified unlawful activity, shall be punished … .” In the in‐
dictment, the Government alleged that Mr. McClellan
fraudulently had submitted reimbursement forms to the
State of Illinois on behalf of T & M, that T & M in fact had
been reimbursed for over $200,000 of services that were nev‐
27 Mr. McClellan also cites United States v. Knox, 624 F.3d 865 (7th Cir.
2010), for the proposition that Mr. McClellan had to “personally au‐
thor[]” false or fraudulent documents in order to be guilty of fraud. Ap‐
pellant’s Br. 20. Because he relied on other employees “to run the daily
operations of the Paragon,” he contends, he cannot be guilty of fraud. Id.
Knox simply does not speak to the situation here. In Knox, the de‐
fendant pleaded guilty to the crimes charged, and the defendant’s argu‐
ment on appeal was limited to alleged errors in the application of the
Sentencing Guidelines. We therefore did not have an occasion to discuss
the evidentiary requirements for the underlying crimes. Moreover, even
if Knox established such a requirement, here there was ample evidence of
Mr. McClellan’s involvement in the day‐to‐day operations of The Para‐
gon.
18 No. 14‐2449
er provided, and that Mr. McClellan used those funds to
purchase the St. John Road house.
Mr. McClellan’s sole argument on this count is that there
was not sufficient evidence to establish that he intended to
defraud the State of Illinois. Instead, he pins the entire
fraudulent scheme on Lopez. According to Mr. McClellan,
he “delegated the authority of the day‐to‐day operations of
the daycare to Fransis [Lopez]. Fransis was the one who as‐
sisted the mothers with filling out the applications and
would falsify the attendance and meal records.”28
Mr. McClellan’s arguments, however, ignore Lopez’s tes‐
timony that she was acting at Mr. McClellan’s and Tina’s in‐
struction in leaving portions of applications blank and in‐
creasing the “Healthy Start” meal tallies. It also ignores
Sanchez’s testimony that Mr. McClellan would increase the
number of meals allegedly consumed by children on the re‐
imbursement claims submitted to the State of Illinois.
Mr. McClellan, at bottom, asks us to ignore Lopez’s tes‐
timony establishing his fraudulent intent. We will set aside a
jury’s credibility determination, however, only if the testi‐
mony was “exceedingly improbable,” meaning that it was
“internally inconsistent or implausible on its face.” United
States v. Johnson, 729 F.3d 710, 715 (7th Cir. 2013) (internal
quotation marks omitted). Mr. McClellan does not argue that
Lopez’s testimony falls into either of these categories, and,
consequently, we will not disturb the jury’s verdict on Count
5.
28 Appellant’s Br. 21.
No. 14‐2449 19
B.
Mr. McClellan also maintains that it was reversible error
for the district court to fail to instruct the jury “that it needed
to assess whether [he] provided shelter to the illegal aliens
named in the Indictment for the specific purpose of shield‐
ing them from government detection.”29
Generally speaking,
[w]e review jury instructions de novo to
determine whether, taken as a whole, they cor‐
rectly and completely informed the jury of the
applicable law. We defer to the district court’s
phrasing of an instruction that accurately states
the law; however, we shall reverse when the
instructions misstate the law or fail to convey
the relevant legal principles in full and when
those shortcomings confuse or mislead the jury
and prejudice the objecting litigant.
Huff v. Sheahan, 493 F.3d 893, 899 (7th Cir. 2007) (citations
omitted) (internal quotation marks omitted).
Here, however, Mr. McClellan failed to object at trial to
the instruction of which he now complains and, consequent‐
ly, has forfeited the objection. United States v. Wiley, 475 F.3d
908, 917 (7th Cir. 2007). We review forfeited objections to ju‐
ry instructions for plain error only. See id. “In order to re‐
verse for plain error, we must find (1) error (2) that is plain,
and (3) that affects the defendant’s substantial rights.”
29 Appellant’s Br. 14.
20 No. 14‐2449
Campbell, 770 F.3d at 558 (quoting United States v. Aslan, 644
F.3d 526, 540 (7th Cir. 2011)). Even after a defendant has
made these showings, however, the decision to correct an
error “is left within the discretion of the court of appeals,
and we ‘should not exercise that discretion unless the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.’” Id. (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
Here, we cannot conclude that the district court commit‐
ted plain error in instructing the jury. An individual violates
8 U.S.C. § 1324(a)(1)(A)(iii) if he “conceals, harbors or shields
from detection … [an] alien in any place,” “knowing or in
reckless disregard of the fact that an alien has come to, en‐
tered, or remains in the United States in violation of law.”
The district court instructed the jury that the Government
must prove beyond a reasonable doubt that:
1. The Defendant harbored the persons
named in the indictment.
2. The persons named in the indictment
were aliens.
3. The persons named in the indictment
remained in the United States in violation of
the law.
4. The Defendant knew that the persons
named in the indictment were not lawfully in
the United States.[30]
The instruction, therefore, mirrors the statutory language.
Moreover, contrary to Mr. McClellan’s assertion, the district
30 R.90 at 89.
No. 14‐2449 21
court did not leave the jury asea with respect to the defini‐
tion of “harbor[].”31 Critically, the district court instructed
the jury that “[t]o harbor an alien means to provide a known
alien with a secure haven, a refuge, or a place to stay where
it is unlikely that the authorities will be seeking him.”32 This
instruction restates, almost to the letter, the definition of
harboring that we set forth in Costello, 666 F.3d at 1050 (de‐
fining “harboring” as “providing … a known illegal alien a
secure haven, a refuge, a place to stay in which the authori‐
ties are unlikely to be seeking him”).
Mr. McClellan nevertheless argues that the instructions
“failed to properly advise the jury that it needed to assess
whether [he] provided shelter to the illegal aliens named in
the Indictment for the specific purpose of shielding them
from government detection.”33 According to Mr. McClellan,
“[t]his Court has previously noted that a district court com‐
mits reversible error by failing to instruct a jury on the spe‐
cific intent requirement of the harboring statute when doing
so may have changed the outcome at trial.”34 He relies on Yu
Tian Li v. United States, 648 F.3d 524 (7th Cir. 2011), in sup‐
port of this contention.
In Li, trial counsel had proposed a jury instruction “mod‐
eled after one used in the Eleventh Circuit,” which did not
31 Appellant’s Br. 14 (arguing that the district court did not “clarify is‐
sues” or “educate the jury” with respect to the meaning of “harboring”
(internal quotation marks omitted)).
32 R.90 at 90.
33 Appellant’s Br. 14.
34 Id. at 13.
22 No. 14‐2449
contain specific intent language, because “there was no con‐
trolling case law nor pattern jury instruction for alien‐harboring
in the Seventh Circuit.” 648 F.3d at 528 (emphasis added). Af‐
ter his conviction for harboring an illegal alien for the pur‐
pose of commercial advantage or private financial gain, Li
filed a motion under 28 U.S.C. § 2255, in which he main‐
tained that his counsel had been ineffective for, among other
reasons, failing to request “a specific intent instruction.” Li,
648 F.3d at 529. The district court denied relief, and we af‐
firmed. We stated:
Under the Strickland standard, we certainly
cannot say that it was outside the realm of rea‐
sonable professional assistance for Li’s counsel
to propose a jury instruction similar to that
used by the Eleventh Circuit and reflecting the
general intent requirement in several other cir‐
cuits, where there was no controlling law in this
Circuit.
Id. at 528 (emphasis added). We did note that “there is room
to argue that Li’s counsel should have requested a specific
intent instruction” based on case law from the Ninth Circuit.
Id. at 529 (citing United States v. You, 382 F.3d 958, 966 (9th
Cir. 2004)). Nevertheless, we concluded that, even if it were
error for Li’s counsel not to ask for a different instruction, Li
had not demonstrated that the proposed instruction adverse‐
ly affected his defense because “the evidence clearly indicat‐
ed that Li’s covert acts were taken with a purposeful attempt
to violate the law.” Id. at 530.
Nothing in our analysis in Li establishes that a specific in‐
tent instruction is required for violations of
§ 1324(a)(1)(A)(iii), much less that the failure to give such an
No. 14‐2449 23
instruction was plain error. Indeed, we noted on more than
one occasion in Li that there was no law from this circuit
holding that § 1324 incorporates a specific intent require‐
ment and, relatedly, no circuit law requiring a specific intent
instruction. We also observed that counsel’s general intent
instruction was consistent with the approach of several other
circuits. Li, 648 F.3d at 528–29 (citing, among other authori‐
ties, United States v. Khanani, 502 F.3d 1281, 1287, 1289 (11th
Cir. 2007), in which the court concluded that a
§ 1324(a)(1)(A)(iii) instruction, similar in all material respects
to the one given here, “correctly addressed all elements of
the offenses”). On plain error review, we cannot grant relief
“unless the error is clear under current law.” Olano, 507 U.S.
at 734. Because the “operative legal question”—whether §
1324(a)(1)(A)(iii) contains a specific intent requirement—was
“unsettled,” the district court did not commit plain error.
United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) (per
curiam) (internal quotation marks omitted).
Here, the jury was instructed on the elements of the of‐
fense. That instruction required the jury to find beyond a
reasonable doubt that the defendant knew the persons
whom he was harboring were not lawfully within the Unit‐
ed States. The jury was further instructed that “[t]o harbor
an alien means to provide a known alien with a secure ha‐
ven, a refuge, or a place to stay where it is unlikely that the
authorities will be seeking him.”35 These instructions, to‐
gether, told the jury that, in order to convict, it had to find
that Mr. McClellan knew the individuals for whom he was
providing lodging were illegal aliens and that he provided
35 R.90 at 90.
24 No. 14‐2449
the housing at least in part for the purpose of keeping their
presence unknown to the authorities—to allow them to live
“under the radar.” The jury was therefore properly oriented
as to its task, and Mr. McClellan suffered no injustice from
having the case submitted under these instructions.
Conclusion
The evidence at trial was sufficient to find Mr. McClellan
guilty of the charged offenses beyond a reasonable doubt.
Additionally, the district court did not commit plain error in
instructing the jury on the elements of harboring under 8
U.S.C. § 1324(a)(1)(A)(iii). His convictions therefore are af‐
firmed.
AFFIRMED